THE SUPREME COURT
[Appeal No. 185/11]
Laffoy J.
Dunne J.
Charleton J.
BETWEEN
PROMONTORIA (ARAN) LIMITED
PLAINTIFF/RESPONDENT
DEFENDANT/APPELLANT
Judgment of Ms. Justice Laffoy delivered the 16th day of November, 2016
The appeal and its procedural background
1. The High Court proceedings the subject of this appeal were initiated by a summary summons issued on 3rd September, 2009 by Ulster Bank Ireland Limited (Ulster Bank), as plaintiff, against the appellant (Ms. Tiernan), as defendant. In the special endorsement of claim Ulster Bank claimed the sum of €1, 731,774.47 representing principal and interest alleged to be due by Ms. Tiernan to Ulster Bank in respect of money lent and advanced by Ulster Bank to Ms. Tiernan at her request and for further interest from 29th August, 2009 to the date of judgment. An appearance was entered on behalf of Ms. Tiernan to the summary summons.
2. Subsequently on 10th November, 2009 Ulster Bank filed a motion in the summary proceedings for liberty to enter final judgment in the terms of the special endorsement of claim. The first affidavit filed on behalf of Ulster Bank to ground the motion for summary judgment was filed on 17th December, 2009. That was an affidavit sworn by Gerry Duignan (Mr. Duignan), the Manager of Ulster Bank’s Business Centre in Drogheda, which was sworn on 14th December, 2009. The contents of that affidavit will be addressed later.
3. A peculiar aspect of this case is that when the motion for summary judgment came on for hearing in the High Court before MacMenamin J. (the trial judge), there were before the Court some affidavits which bore the record number of other proceedings brought by Ulster Bank against Ms. Tiernan. Those proceedings were proceedings by way of special summons (Record No. 1149/2009 SP), which I understand were proceedings wherein Ulster Bank sought to enforce security it held over certain properties created by solicitor’s undertakings alleged to have been given to it on foot of irrevocable letters of authority given by Ms. Tiernan. The only relevance of those proceedings to the appeal being addressed in this judgment is that some of the affidavits filed in the High Court on the motion for summary judgment were apparently affidavits which were filed in the special summons proceedings and bear the record number of the special summons proceedings. A pragmatic and sensible approach was adopted by counsel on both sides in relation to those affidavits on the hearing of the appeal, in that neither side raised any point in relation to those affidavits, being considered by this Court. Apart from the grounding affidavit already referred to, the following affidavits are, accordingly, before this Court on the appeal:
(a) an affidavit sworn by Mr. Duignan on 28th January, 2010;
(b) an affidavit sworn by Ms. Tiernan on 25th March, 2010;
(c) an affidavit sworn by Mr. Duignan on 11th May, 2010; and
(d) an affidavit sworn by Ms. Tiernan on 1st July, 2010.
The foregoing affidavits will require to be considered in some detail later.
4. The motion for summary judgment came on for hearing in the High Court on 20th January, 2011. The outcome was that Ulster Bank obtained summary judgment in the sum of €1,798,267.02 with interest thereon at the statutory rate and the costs of the proceedings against Ms. Tiernan. An ex tempore judgment was delivered by the trial judge on 20th January, 2011. While counsel for both sides did not agree a note of the judgment, there is before this Court on the appeal a note of the judgment prepared by counsel for Ulster Bank and approved of by the trial judge. Once again, adopting a pragmatic and sensible approach, counsel for the appellant on this appeal has made his case on the basis of that approved note.
5. Having obtained an order from this Court (Murray C.J., Denham J. and Hardiman J.) on 6th May, 2011 to extend the time for service of notice of appeal, Ms. Tiernan served notice to appeal from the judgment and order of the High Court. Later, in 2013 a motion was brought on behalf of Ms. Tiernan to this Court for -
That motion having been heard by this Court (Fennelly J., O’Donnell J. and McKechnie J.), by order dated 12th July, 2013 it was ordered that -
6. The position, accordingly, when the appeal came on for hearing was that, in addition to addressing the appeal against the judgment and order of the High Court, this Court might have had to consider whether or not to admit any new ground of appeal set out in the amended notice of appeal and would have had to adjudicate on the application on behalf of Ms. Tiernan to adduce further evidence. As it happened, at the commencement of the hearing, counsel for Ms. Tiernan informed this Court that those two additional matters were not being pursued on the appeal and no objection was raised on behalf of the respondent referred to in the next paragraph to that approach being adopted.
7. Finally, before the appeal came on for hearing in this Court, by order of the High Court made on 4th February, 2016, the title of the proceedings was amended by the substitution for Ulster Bank of Promontoria (Aran) Limited (the respondent) as plaintiff, and, consequently, as respondent on the appeal. On the hearing of the appeal it was made clear that no issue was being raised on behalf of Ms. Tiernan in relation to that amendment.
The issue on the appeal
8. In the light of the foregoing the only issue on the appeal is whether the order of the High Court giving judgment against Ms. Tiernan should be set aside, so that the proceedings can proceed to plenary hearing and be defended on behalf of Ms. Tiernan. That issue is to be determined on the basis of the affidavits itemised earlier which were before the High Court and the contents of which will be outlined by reference to the submissions made on the hearing of the appeal. Although the affidavit evidence is outlined in some detail, it is not to be inferred that the Court has formed any view as to the credibility of the evidence put forward by either deponent, as distinct from whether, insofar as is necessary, a general view is formed as to the credibility of the defence put forward by Ms. Tiernan in line with the proper approach as laid down by this Court, having regard to the judgment of Clarke J. in what is referred to later as the IRBC case, which approach was reiterated more recently in the judgment delivered in this Court by Clarke J. in Camiveo Limited v. Dunnes Stores [2015] IESC 43 (at para. 3.2).
Outline of evidence before the High Court
Grounding affidavit of Mr. Duignan
9. The grounding affidavit of Mr. Duignan was, as counsel for Ms. Tiernan pointed out, very bare. However, Mr. Duignan corrected an error in the special endorsement of claim on the summary summons as to the amount claimed to be due by Ms. Tiernan to Ulster Bank. It was averred that the corrected sum, €1,738,942.32 was then due and owing by Ms. Tiernan to Ulster Bank on foot of the loan account referred to in the special endorsement of claim. Further, it was averred that Ms. Tiernan had no bona fide defence to the action. The only document exhibited in the grounding affidavit was a so-called “Statement of Liability”, being a table showing the amount alleged to be due by Ms. Tiernan to Ulster Bank as at 22nd October, 2009.
Mr. Duignan’s affidavit of 28th January, 2010
10. The affidavit sworn by Mr. Duignan on 28th January, 2010 contained an averment that on or about 28th November, 2007 Ms. Tiernan was advanced the sum of €1,747,000.00 by Ulster Bank repayable on demand with a moratorium on repayment of principal and interest for a period of seven months from the date of the said advance. A copy of the facility letter outlining the terms of the said advance was exhibited. The facility letter was dated 28th November, 2007 and it was addressed to Ms. Tiernan. It gave the name of the borrower as Ms. Tiernan. The facility was described as a “Demand Loan Facility” and the amount was given as €1,747,000.000. The purpose of the facility was outlined as being for the sole purpose of assisting with: repayment of a Bank of Scotland loan facility of €850,000; the purchase of a residential property at Gallery Quay, Grand Canal, Dublin, costing €710,000; and payment of various amounts in respect of stamp duty, legal fees, bank fees and fund bank interest. The facility also provided that the Bank would get security by way of first legal charge over licensed premises trading as “The Milestone” situate at Carlingford, County Louth and also security by way of first legal charge over the residential property situate at Gallery Quay. The fourth page of the facility letter contained the acceptance by Ms. Tiernan. It was signed by Ms. Tiernan and dated 28th November, 2007.
11. Mr. Duignan also averred that Ulster Bank had received, as security for the advance to Ms. Tiernan, two undertakings, both dated 5th December, 2007, from “Messrs. Traynor & Company” (Traynors), Solicitors, with an address in Dundalk, County Louth agreeing to register both properties which were to be given as security to Ulster Bank in the name of Ms. Tiernan and to hold the title deeds of both properties to the order of Ulster Bank. Mr. Duignan averred that, although called upon to do so, Traynors had failed to comply with the terms of the undertakings to Ulster Bank. Mr. Duignan averred that neither of the properties was a family home within the meaning of the Family Home Protection Act 1976 by reference to certificates on the solicitors’ undertakings, copies of which were exhibited, which it was alleged were signed by Ms. Tiernan on 5th December, 2007. The affidavit also exhibited a copy of a letter dated 13th August, 2009 from Ulster Bank to Ms. Tiernan demanding repayment of the amount due on foot of the loan agreement. The correction of the amount claimed as being due in the grounding affidavit was explained on the basis of “one payment of €14,646.62 having been received on 18th August, 2009” after that letter.
Ms. Tiernan’s affidavit of 25th March, 2010
12. In her affidavit sworn on 25th March, 2010 in reply to Mr. Duignan’s affidavit sworn on 28th January, 2010, Ms. Tiernan averred that three of the signatures purporting to be her signatures which appeared on the documents exhibited by Mr. Duignan, that is to say, the loan facility and the two solicitors’ undertakings, were not made by her. However, she did not deny that the signature on the acceptance portion, that is to say the fourth page, of the facility letter was her signature. However, she averred that she had no recollection of seeing the first three pages of the facility letter prior to 28th November, 2007, that is to say, the date on which she signed the acceptance. She then made the following averment, which is crucial to the defence she advances to the claim of Ulster Bank:
“I state and believe that [Ulster Bank] and its agents and in particular the deponent [Mr. Duignan] is fully aware of the identity of the person who negotiated, arranged and obtained the loan subject matter of these proceedings from [Ulster Bank] and that person is my father. [Ulster Bank’s] managers, including the said Mr. Duignan were engaged in a subterfuge to disguise the fact that they were advancing further monies to a person who had already received substantial advances from [Ulster Bank]. At the time of the transactions referred to in the affidavit of the said Mr. Duignan I had only recently qualified as a solicitor and was still in the course of an apprenticeship with a firm of solicitors in Dublin. The idea that [Ulster Bank] would have considered me for a loan of €1,713,774.47 simply flies in the face of common sense.”
13. Ms. Tiernan pointed out in her affidavit that Mr. Duignan in his affidavit had not directly stated by whom the payment of €14,646.62 was made and she continued:
“[Ulster Bank] is well aware that I was not in a position to make any payment of such magnitude. I state and believe that [Ulster Bank] is fully aware of the identity of the person who made such payment. [Ulster Bank] is exploiting the fact that I was prepared to help my father from time to time in his dealings with the Bank. In e-mails and certain documents he requested from me Mr. Duignan maintained the subterfuge that he was dealing with me as a principal contracting party. At all stages he knew that the person with whom he was dealing was my father.”
14. As regards the undertakings given by Traynors to Ulster Bank, Ms. Tiernan averred that she had not authorised any such undertaking, that she had not had and, at the time of swearing the affidavit, did not have any beneficial interest in the properties in question. Finally, she averred that she had a full defence to the proceedings commenced by summary summons and in relation thereto she averred that Ulster Bank -
“. . . well knew that they were contracting with my father and my limited involvement would not have been sufficient to have my part deemed to be that of an agent.”
Although it has to be acknowledged that the rather strangely worded last statement in that quotation appears to be at variance with the position now adopted by Ms. Tiernan, I have come to the conclusion that it should not detract from the position now being adopted by Ms. Tiernan.
Mr. Duignan’s affidavit of 11th May, 2010
15. Ulster Bank’s reply to Ms. Tiernan’s affidavit was in the affidavit sworn by Mr. Duignan on 11th May, 2010. Addressing Ms. Tiernan’s averment that the signatures on a number of documents were not hers, Mr. Duignan averred that, in circumstances where she “negotiated the loan advance” from Ulster Bank and had subsequently entered into extensive correspondence with Ulster Bank in relation to the loan and her business affairs, Ulster Bank was astonished by that “contention now being raised for the first time”. He averred that Ulster Bank did not accept the same. Mr. Duignan expressed further astonishment in relation to the other averments made by Ms. Tiernan, for example, that the identity of the person who negotiated, arranged and obtained the loan was known to him and that he and his colleagues were engaged in subterfuge, suggesting that the averments were a desperate attempt on the part of Ms. Tiernan to avoid her obligations to Ulster Bank. Mr. Duignan then averred:
“I say that there is no substance whatever to the averments made by [Ms. Tiernan] in her affidavit sworn on 27th March, 2010.”
16. Mr. Duignan then went on to make certain averments which may be summarised as follows:
(a) that Ms. Tiernan’s father, Francis Tiernan, was known to Ulster Bank and that he had been advanced loan facilities by Ulster Bank Limited in Northern Ireland but had defaulted and judgment had been entered by Ulster Bank Limited against him on 2nd May, 2007 for the sum of €94,133.65 together with costs;
(b) that a recent article published in the Irish Times, a copy of which was exhibited, related to Mr. Tiernan’s dealings with ACC Bank;
(c) that from Ulster Bank’s point of view, the security to be provided by Ms. Tiernan for the advance to her was “a valuable security relative to the size of the advance and further, that repayment was to be made within a short period from the proceeds of the sale of the . . . licensed premises” at Carlingford; and
(d) that in the period subsequent to the disbursement of the loan to Ms. Tiernan, Ulster Bank had extensive e-mail correspondence with her during all of which it was abundantly clear that she was “dealing with [Ulster Bank] in her own right as borrower and not on behalf of anybody else”, a sample of the correspondence being exhibited.
One of the letters exhibited was a letter to Mr. Duignan signed by Ms. Tiernan, which was headed “Loan for Milestone Bar, Carlingford”, in which Ms. Tiernan confirmed that she authorised Mr. Duignan “to speak openly with my father Frank Tiernan regarding the above matter, as he is speaking with you on my behalf”. While the letter was undated, it would appear that it was sent by facsimile on 8th April, 2009.
17. Mr. Duignan also averred that it was clear from the loan and the security documentation and from the correspondence that Ms. Tiernan was at all times fully cognisant of the issues involved and was the borrower of the advances. However, he did not address her contention that the three signatures on the undertakings were not her signatures. He continued:
“It is notable that the outlandish contention that she was in some way acting as a conduit or agent for her father is proffered for the first time in her Affidavit. Not once in all her dealings with [Ulster Bank] did she make reference to such a scenario. The allegation that I, in concert with a number of my colleagues, was engaged in a subterfuge is a very serious allegation for [Ms. Tiernan] to make, particularly as she is a Solicitor. Such an allegation is particularly outrageous given that [Ms. Tiernan] neither provides nor points to any evidence, documentary or otherwise, to substantiate same.”
18. Another point made by Mr. Duignan in his affidavit was that Traynors, who were described as the “Solicitors representing [Ms. Tiernan] in her dealings with [Ulster Bank]”, at all times headed their correspondence on the basis that Ms. Tiernan was their client and never mentioned the involvement of Frank Tiernan as the loan recipient.
19. The final matter averred to by Mr. Duignan related to a meeting held on 5th May, 2009 in Ulster Bank’s premises in Dundalk, which was attended by Frank Tiernan and by Ms. Tiernan’s then recently appointed solicitor, Danny McNamee, three officials of the Bank including Mr. Duignan and a solicitor representing the Bank. Mr. Duignan averred that at no stage during the meeting was it ever alleged that Ms. Tiernan was not the proper recipient of the advance by Ulster Bank. Mr. Duignan exhibited what he referred to as “a comprehensive note of the discussions which took place” prepared by Paul Cumiskey (Mr. Cumiskey), an official of Ulster Bank.
Ms. Tiernan’s affidavit of 1st July, 2010
20. The final affidavit which was before the High Court and which is before this Court is the affidavit sworn by Ms. Tiernan on 1st July, 2010. In that affidavit Ms. Tiernan reiterated that Ulster Bank and its agents and, in particular, Mr. Duignan, were fully aware that the person “who negotiated, arranged and obtained the loan . . . from [Ulster Bank]” was her father. She averred that she did not at any time negotiate the loan advance from Ulster Bank and that the loan advance was negotiated by her father, Francis Tiernan, with Mr. Cumiskey, representing Ulster Bank. Ms. Tiernan averred that at the time that the arrangement was being negotiated, the officials of the Bank, Mr. Duignan and Mr. Cumiskey, whom she averred had dealings with her father when they worked for ACC Bank, could not have reported to their superiors that they were involved in lending further monies to her father because they were aware of certain matters to which she then averred.
21. The first matter was her father’s indebtedness to ACC Bank which, as has been outlined, had been obliquely referred to in Mr. Duignan’s affidavit sworn on 11th May, 2010 by reference to what was described as “a recent article published in the Irish Times relating to Mr. Tiernan’s dealings with ACC Bank”. Ms. Tiernan commented that Mr. Duignan did not need to rely on press reports to know the extent of her father’s alleged indebtedness to ACC Bank and knew “that the figures involved allegedly exceeded 10 million euro”. The second matter was the judgment obtained by Ulster Bank Limited against Mr. Tiernan which had been averred to by Mr. Duignan.
22. Ms. Tiernan also disputed Mr. Duignan’s reliance on the underlying “valuable security”, pointing out that at the time of the advance she was a trainee solicitor in receipt of income of €23,000 per annum and that, despite the fact that it was a condition precedent of the loan facility that the facility would not be available for drawdown without prior receipt from “client accountant of a net worth statement”, as far as she was aware no such statement was prepared in relation to her “net worth”. She averred that it would have been apparent from any such statement that once the seven month moratorium on repayment had passed, it would have been impossible for her to have serviced the loan.
23. Ms. Tiernan went on to connect the first purpose for the facility as set out in the facility letter (repay Bank of Scotland loan facility of €850,000), to the Milestone Bar at Carlingford and the undated letter which appears to have been sent by facsimile on 8th April, 2009 referred to earlier. She averred that she had helped her father in relation to a company known as Fieldore Limited, a company of which she apparently was a director, which was indebted to Bank of Scotland in relation to that property. She averred that her understanding was that her father had acquired the Milestone Bar through Fieldore Limited as an investment. The main purpose of the loan facility was to clear the indebtedness to Bank of Scotland so that “the said premises would be made available by my father to [Ulster Bank] as security”. Referring to the note of the meeting on 7th May, 2009 exhibited by Mr. Duignan, she averred that -
“. . . [it] shows that when [Ulster Bank] wished to sort out the problems in connection with the purported loan herein it referred to my father who alone had information in relation to dealings with the said ‘Milestone Bar’.”
She also averred that Mr. Duignan pressed her to furnish him with authority to speak to her father, as she did in the undated letter, adding that, with the benefit of hindsight, she saw that the said request “was a ploy to maintain the pretence that I was the borrower in question”.
24. Referring to the meeting of 7th May, 2009, Ms. Tiernan averred that her solicitor, Mr. McNamee, attended the meeting in purely a fact-finding role to ascertain on her behalf any potential liability which might have attached to her in relation to the loan facility. She averred that at a subsequent meeting between herself and Mr. Duignan attended by Mr. McNamee, “the issue of who had signed what documentation was raised”. Further, she averred that she had a clear recollection that at a meeting between herself and Mr. Duignan in March 2009 she had made it clear to Mr. Duignan that the loan was between Ulster Bank and her father and that the responsibility for satisfying any liabilities on the loan fell to her father. Ms. Tiernan, having stated that she realised that she could be criticised for not making it clearer that her father was the borrower from Ulster Bank, averred that she genuinely believed that -
“. . . [Ulster Bank’s] servants or agents knew well that I was merely the nominal borrower and that the monies the subject matter of these proceedings were paid to my father to refinance his dealings with the ‘Milestone Bar’.”
25. Ms. Tiernan also averred that Mr. Joseph Traynor had been her father’s solicitor for many years, but that she had never met or seen him prior to May 2009. She also averred that the officials of Ulster Bank knew, from previous dealings, that he was her father’s solicitor.
26. Her contention that she has “a full defence” to the claim by Ulster Bank was reiterated by Ms. Tiernan at the end of her final affidavit. She averred once again that Ulster Bank well knew that it was contracting with her father and that her involvement was “a pretence” operated by Ulster Bank’s officials and her father’s solicitor to allow her father to borrow monies to finance various dealings in circumstances where, because of her father’s indebtedness to Ulster Bank Limited and other institutions, it would not have been viable to present him as a borrower. She stated positively that she did not receive any of the monies claimed by Ulster Bank. She also averred that her name had not appeared on the title to the properties referred to in the loan facility, which appears to have been true when she swore the final affidavit on 1st July, 2010 but which, as regards the Gallery Quay property, seems to have changed subsequently.
The judgment of the High Court
27. As has been recorded earlier the judgment delivered by the trial judge on 20th January, 2011 was an ex tempore judgment. For present purposes, I propose to advert to the aspects of the judgment to which counsel for Ms. Tiernan drew attention. While the trial judge pointed to the peculiarity that some of the affidavits before him bore the record number of the special summons proceedings, consistent with the approach outlined earlier, counsel for Ms. Tiernan informed this Court that he accepted that the trial judge was not ruling out the affidavit evidence in the special summons proceedings which was before him.
28. Referring to the affidavit evidence of Ms. Tiernan, the trial judge recorded that it was stated that the officers of Ulster Bank operated the loan in a way in which Ms. Tiernan was used “as a conduit for her father, Frank Tiernan”. The trial judge observed that when one examined her affidavit evidence thoroughly, Ms. Tiernan did not deny that she was “a de facto conduit”. Counsel for Ms. Tiernan submitted that “de facto conduit” was not a correct characterisation of Ms. Tiernan’s status.
29. The trial judge pointed out that it was not in controversy that the meeting of 7th May, 2009 took place and that Ms. Tiernan acknowledged that it was attended by her solicitor. He described as a noteworthy feature that Mr. Duignan had exhibited in his affidavit of 11th May, 2010 the letter written by the defendant, which, on the assumption that it was sent by facsimile on 8th April, 2009, he correctly identified as having been written prior to the meeting of 7th May, 2009. While the trial judge noted that Ms. Tiernan criticised Ulster Bank for being selective in exhibiting e-mails, he emphasised that what was not in controversy was that Ms. Tiernan had authorised Ulster Bank to speak to her father and that her father would be speaking with Ulster Bank on her behalf.
30. Counsel for Ms. Tiernan takes issue with what is stated by the trial judge about a number of factual matters: that none of the essential matters were in controversy, save that Ms. Tiernan alleged that Ulster Bank knew that she was a conduit, which was denied by Mr. Duignan on affidavit; that at no stage prior to the filing of her affidavit in the proceedings did she make her case in any substantive way; and the analysis of what is described as “the uncontradicted minute” of the meeting of 7th May, 2009. The position of counsel for Ms. Tiernan is that those matters are in controversy, giving as an example that Ms. Tiernan’s evidence is that she made the case she has now made on affidavit at least twice before the affidavit in question was sworn. As regards what happened at the meeting on 7th May, 2009, counsel for Ms. Tiernan submitted that the trial judge had embarked on a credibility analysis. In particular, he referred to the statement by the trial judge that it was repeatedly stated in the memorandum “that the loan was to [Ms.] Tiernan”. That was Ulster Bank’s version, it was submitted, and the note prepared by Mr. Cumiskey was Ulster Bank’s memorandum.
31. The trial judge stated that it could not be said with any degree of credibility that Ms. Tiernan could say that she did not receive the money and he outlined his reasons for that conclusion. Counsel for Ms. Tiernan disputed a number of those reasons. Consistent with what he had submitted earlier, counsel stated that it was not very late in the day that any third party involvement was raised by Ms. Tiernan, pointing to the two occasions on which she had raised the point before she swore the first affidavit. He disputed that statements made by Ms. Tiernan’s solicitor at the meeting of 7th May, 2009 could “bind her to the agreement”. The trial judge’s last reason was in the following terms:
“Critically in this dispute, it is not denied that [Ms. Tiernan] received the money whether as a conduit or on her own behalf.”
Counsel for Ms. Tiernan re-emphasised that Ms. Tiernan has explicitly denied that she received the money and he submitted that this is critical to the issue this Court has to decide.
32. Counsel for Ms. Tiernan also commented on the fact that there was no reference in the judgment to the allegation of forgery made by Ms. Tiernan, although it had been made clear in Mr. Duignan’s affidavit of 11th May, 2010 that Ulster Bank was putting everything in issue.
Legal principles invoked on behalf of Ms. Tiernan in relation to the defence of the substantive action and the respondent’s response
33. The position adopted by counsel for Ms. Tiernan was that the evidence which is before this Court shows that she was not a conduit for her father, as characterised by the trial judge, but she was an agent for a disclosed principal, namely, her father, who negotiated the loan and was advanced the money by Ulster Bank. Counsel referred this Court to the commentary in Bowstead & Reynolds on Agency, 20th Ed., (London, 2014) and, in particular the following passage at para. 9 - 001:
“In the absence of other indications, when an agent makes a contract, purporting to act solely on behalf of a disclosed principal, whether identified or unidentified, he is not liable to the third party on it. Nor can he sue the third party on it.”
It was submitted that Ms. Tiernan will have a complete defence to the claim of Ulster Bank if what she contends is borne out on the facts at the hearing, if the matter goes to plenary hearing. Counsel submitted that, having regard to the state of the evidence before the High Court, the High Court should have ordered that the matter go to full trial.
34. Counsel for the respondent submitted that the hearing before this Court was the first occasion on which the concept of agency had been raised. In response counsel for Ms. Tiernan referred the Court to the first ground in the original notice of appeal in which it was asserted that the High Court erred in law and in fact -
“in holding that [Ms. Tiernan’s] admission that she was a nominal borrower and acted as a mere conduit for the loan amounts made her liable for the debt even though she was agent for a disclosed principal.”
I should make it clear that my understanding of the position of the parties is that, if this Court on this appeal allows the matter to go to plenary hearing, in the absence of consent between the parties, or an order allowing the filing of an amended notice of appeal, the action will proceed on the basis of the original notice of appeal, not the proposed amended notice of appeal.
35. Counsel for the respondent disputed that Ms. Tiernan could, on the evidence before this Court, seek to defend on the basis that she had the status of an agent. He emphasised that counsel for Ms. Tiernan had not pointed to any authority to the effect that, where a person signs a facility letter accepting its terms, he or she may not be liable to repay the debt. The position of the respondent was that only the signature of the borrower named on a loan agreement, or in this case on the acceptance of the terms of the facility letter, determines who is liable to pay the lender back and the lender can only pursue that person. It was also emphasised that Ms. Tiernan did not aver that she entered into the contract on behalf of her father; rather she averred that she entered into the contract instead of her father. It was submitted that Ms. Tiernan had a clear understanding that her father was not creditworthy and entered into the loan agreement instead of him. Even if Ulster Bank declined to lend to Ms. Tiernan’s father, but instead agreed to lend to her, that was alternative borrowing. It was not an agency situation.
Legal principles applicable to a contested application for summary judgment
36. As is pointed out in Delany and McGrath Civil Procedure in the Superior Courts 3rd Ed., (Dublin, 2012) (at para. 26 - 44), the test for deciding whether liberty to enter judgment or leave to defend should be granted are essentially the same because if judgment is not granted upon the motion, leave to defend is impliedly given to the defendant. The authors then outline a number of authorities decided over the last twenty years in which the test was considered including, what they describe as a “clear and helpful synthesis of the principles to be applied” as provided by McKechnie J. in the Harrisrange Limited v. Duncan [2003] 4 IR 1. One of the principles set out by McKechnie J. is that leave to defend should be granted unless it is very clear that there is no defence.
37. More recently, the test was analysed in judgment delivered in this Court in Irish Bank of Resolution Corporation (in Special Liquidation) v. McCaughey [2014] 1 IR 749 (the IBRC case). In a judgment delivered by Clarke J., with which the other judges concurred, it was stated as follows (at para. 19 et seq.):
“The underlying test is as set out in the judgment of Hardiman J., speaking for this Court, in Aer Rianta c.p.t. v. Ryanair Limited [2001] 4 IR 607. As Hardiman J. pointed out, at p.623:-
‘… the fundamental question to be posed on an application such as this remains: is it ‘very clear’ that the Defendant has no case?; Is there either no issue to be tried or only issues which are simple and easily determined?; Do the Defendant’s affidavits fail to disclose even an arguable defence?’
[20] It is also important, as Finlay Geoghegan J. pointed out in Bank of Ireland v. Walsh [2009] IEHC 220 (Unreported, High Court, Finlay Geoghegan J., 8th May, 2009), to keep clearly in mind that the use of the term ‘credible’ in relation to a defence has, for the reasons also addressed by Hardiman J. in Aer Rianta v. Ryanair [2001] 4 IR 607, a very narrow meaning. The issues of credibility, which had formed the basis of a conclusion that a defendant had not put forward an arguable defence, in cases such as National Westminster Bank v. Daniel [1993] 1W.L.R. 1453, Banque de Paris v. de Naray [1984] 1 Lloyds Rep. 21 and First National Commercial Bank v. Anglin [1996] 1 IR 75, arose, as Hardiman J. put it, ‘rather starkly’. In National Westminster Bank v. Daniel, the defence affidavits were mutually contradictory. In Bancque de Paris v. de Naray, there was clear evidence, not challenged, from a private detective, which flatly contradicted the plaintiff's case. In First National Commercial Bank plc v. Anglin, the chronology asserted was entirely inconsistent with commercial documentation which was not, in itself, disputed.
[21] Denham J., speaking for this Court in Danske Bank a/s (t/a National Irish Bank) v. Durkan New Homes [2010] IESC 22 (Unreported, Supreme Court, 22nd April, 2010), also approved a passage from a judgment which I delivered in the High Court in McGrath v. O'Driscoll [2007] I.L.R.M. 203, where, at p. 210, I said the following:-
‘So far as questions of law or construction are concerned the court can, on a motion for summary judgment, resolve such questions (including, where appropriate, questions of the construction of documents), but should only do so where the issues which arise are relatively straightforward and where there is no real risk of an injustice being done by determining those questions within the somewhat limited framework of a motion for summary judgment.’
Hardiman J. had expressed a similar view in his judgment in Aer Rianta c.p.t. v. Ryanair Ltd. [2001] 4 IR 607, in the passage already cited, where he made reference to issues which were simple and easily determined.
[22] It is important, therefore, to reemphasise what is meant by the credibility of a defence. A defence is not incredible simply because the judge is not inclined to believe the defendant. It must, as Hardiman J. pointed out in Aer Rianta c.p.t. v. Ryanair Ltd. [2001] 4 IR 607, be clear that the defendant has no defence. If issues of law or construction are put forward as providing an arguable defence, then the Court can assess those issues to determine whether the propositions advanced are stateable as a matter of law and that it is arguable that, if determined in favour of the defendant, they would provide for a defence. In that context, and subject to the inherent limitations on the summary judgment jurisdiction identified in McGrath v. O’Driscoll [2006] IEHC 195, [2007] 1 ILRM 203, the court may come to a final resolution of such issues. That the Court is not obliged to resolve such issues is also clear from Danske Bank a/s (t/a National Irish Bank v. Durkan New Homes [2010] IESC 22, (Unreported, Supreme Court, 22nd April, 2010).
[23] Insofar as facts are put forward, then, subject to a very narrow limitation, the court will be required, for the purposes of the summary judgment application, to accept that facts of which the defendant gives evidence, or facts in respect of which the defendant puts forward a credible basis for believing that evidence may be forthcoming, are as the defendant asserts them to be. The sort of factual assertions, which may not provide an arguable defence, are facts which amount to a mere assertion unsupported either by evidence or by any realistic suggestion that evidence might be available, or, facts which are in themselves contradictory and inconsistent with uncontested documentation or other similar circumstances such as those analysed by Hardiman J. in Aer Rianta c.p.t. v. Ryanair Ltd. [2001] 4 IR 607. It needs to be emphasised again that it is no function of the Court on a summary judgment motion to form any general view as to the credibility of the evidence put forward by the defendant.”
The foregoing principles, insofar as they are relevant, will now be applied to determine whether the summary judgment in favour of Ulster Bank against Ms. Tiernan should be allowed to stand.
Application of legal principles
38. At the heart of the contest between the respondent, as successor of Ulster Bank, which contends that it is very clear that Ms. Tiernan has no defence to its claim in the summary proceedings, on the one hand, and Ms. Tiernan, whose case is that she has demonstrated that she has a defence, on the other hand, is the factual and legal dispute which has emerged from the affidavits filed in support of and in response to the motion for summary judgment as to the status in which Ms. Tiernan accepted the terms of the facility letter. The crucial question is whether her acceptance was as agent for her father as a disclosed principal, as she contends, or as principal borrower, as the respondent contends. Looking at the factual component of that dispute by reference to the approach suggested by Clarke J. in para. 23 of the reported judgment in the IBRC case, I am satisfied that Ms. Tiernan has demonstrated in her two affidavits filed in response to Ulster Bank’s claim that the factual matrix within which the transaction entered into by her with Ulster Bank took place may support the defence she puts forward, namely, that she entered into the transaction as an agent for a disclosed principal. In particular, I am satisfied that, notwithstanding the existence, and the terms, of the acceptance portion of the facility letter as executed by Ms. Tiernan, Ms. Tiernan has given evidence on affidavit from which it can be deduced that there is a credible basis for concluding that she may be able to defend the claim of the respondent, as successor of Ulster Bank, on the basis she asserts, namely, that she entered into the transaction as an agent for a disclosed principal.
39. Having regard to the evidence before the Court, it is reasonable to predict that, if the claim of the respondent, as successor of Ulster Bank, and the defence which Ms. Tiernan wishes to advance goes to plenary hearing, the core issue to be determined, namely, whether Ms. Tiernan entered into the transaction with Ulster Bank to its knowledge as an agent, not as a principal, as she contends and thus avoids liability to the respondent, as successor of Ulster Bank, for the monies advanced on foot of the facility letter, will be a mixed question of law and fact and will probably involve construction of one or more documents. It is also reasonable to predict, against the background of the complexity of the underlying transaction in the overall context of the dealings of Ulster Bank with Ms. Tiernan and her father, as discernible not only in Ms. Tiernan’s affidavits but also in Mr.Duignan’s affidavits, that the resolution of that core issue will be anything but straightforward. What can be said definitively is that, assuming that to be the core issue, this Court is not required to consider its resolution.
40. Having regard to the evidence before this Court as outlined earlier, this is not a case in which one can conclude that it is “very clear” that Ms. Tiernan has no defence to the claim of the respondent, as successor of Ulster Bank. That being the case, Ms. Tiernan must be afforded an opportunity to defend the claim. The evidence put before the Court by Ms. Tiernan, in my view, points to there being a real risk of an injustice being done to her if she is not afforded the opportunity to defend the claim.
Order
41. Accordingly I propose that the order of the High Court made on 20th January, 2011 giving summary judgment to Ulster Bank against Ms. Tiernan be discharged and that the matter be remitted to the High Court to go to plenary hearing.
